Saturday, September 26, 2009

Madness, Part 2

To be completely honest, my decision wasn't completely due to the handgun ruling. The event is not really quite up my alley, but the prospect of encountering a paranoid redneck carrying a handgun didn't exactly add any enticement. Besides, I would have had to have chosen between the classic rock "tribute" bands at the cook-off and the very original Kate Morrissey at the Zen Center. As it turns out, the weather here in Atlanta returned to rain, although fortunately not enough for a reprise of last week's flooding, and I stayed home and didn't go to either.

But last week, considering the gun lobby's victory at Stone Mountain, I wondered whether there should be a right to be away from arms if that is one's preference?

The Second Amendment guarantees that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The first clause of the amendment refers to the need for “a well regulated Militia” and the second states that “the right of the people to keep and bear Arms, shall not be infringed.”

Judicial scholar Jeffrey Toobin, writing in The New Yorker, notes that for many decades, into the nineteen-eighties, it was widely agreed among judges and scholars that the right to bear arms belonged only to militias, and thus the Second Amendment imposed no limits on the ability of states and localities to enact gun-control laws. Warren E. Burger, the former Chief Justice (and no liberal), said that any other view of the law was a “fraud,” and Robert Bork, the conservative hero, said much the same thing.

But Ronald Reagan's attorney general Ed Meese and his allies in the National Rifle Association were indefatigable in pushing an opposing interpretation, and their position became widely adopted, first in the Republican Party and then among many Democrats. The NRA pushed this interpretation to the extreme position that the Constitution prohibited any restrictions on any guns at any location. Finally, in 2008, the Supreme Court, in an opinion written by Antonin Scalia (who was appointed while Meese was attorney general), struck down a District of Columbia gun-control law as a violation of the Second Amendment. A fringe position—a “fraud”—two decades earlier had become the law of the land.

This is an example of what has come to be called Democratic Constitutionalism. Conservatives convinced other people that their vision of the Constitution was a better one, they won elections, and they appointed their people to the Court. This is not lawlessness. This is how the system works.

Fair enough. But now that we have a Democratic President, a Democratic Congress, and a Democratic attorney general, can we not now engage in some more Democratic Constitutionalism ourselves and go about reinterpreting this Amendment back to the earlier understanding, and get the concealed handguns out of our State Parks and away from our Chili Cook-Offs?